Andhra HC (Pre-Telangana)
Mutyala Tata Rao vs Mutyala Satyavathi on 23 August, 1991
Equivalent citations: 1992(1)ALT85
JUDGMENT D.J. Jagannadha Raju, J.
1. This is an appeal filed by the husband-petitioner against the dismissal of the O.P. filed for divorce on two grounds, namely, desertion and cruelty. The appeal is filed against the judgment dated 18th January, 1988 in O.P.No. 21 of 1984 on the file of the subordinate Judge, Ramachandrapuram. The parties were married in the year 1963. They have two children a girl and a boy. They lived together happily till 1978-79. Then bickerings arose between the spouses regarding some properties. It is claimed by the husband petitioner/appellant that in June, 1979, as a result of his questioning the parents of the wife regarding the income from the lands given as Pasupukunkuma, the parents of the respondent took her away from the martial home and since then, in spite of his efforts, she did not come back and live with the husband. In 1979, a suit was filed by the wife for recovery of possession of her property and for rendition of accounts for the profits realised for 16 years. It is claimed that when the suit was filed, the husband in retaliation filed a petition for restitution of conjugal rights O.P.No. 190. That O.P. was ultimately dismissed in view of the judgment of this High Court staling that the remedy of restitution of conjugal rights is ultra vires the Constitution. Subsequently some other disputes arose between the parties and it is now an admitted fact that from 1979 June, the parties are living apart separately though they reside in houses which are opposite to each other. At the time of the marriage, a site with a tiled house was gifted to the spouses by the father of the wife. That house is situated opposite to the house of the parents of the wife. On the ground of desertion which extends from 1979 June to the date of filing of the O.P. in 1984, the husband claims a decree of divorce.
2. The respondent-wife resisted the petition on the ground that from the beginning the husband was ill-treating her and that the husband was addicted to vices and he failed to render accounts for Acs.5-95 cents of her property which was entrusted to the husband in the year 1964. Though a separate house was given to the petitioner under settlement deed dated 23-8-1976, the husband never looked after the wife properly. He used to beat her often; he was addicted to gambling and he was neglecting the wife and the children in the sense that he was not giving her any money for purchasing provisions and to run the household. He was a squanderer spending away the money realised from his own lands as well as the lands belonging to the respondent. On one occasion, the petitioner took gold Palakasarulu of 30 Tolas weight from the parents of the wife on the pretext that it was needed for his sister-in-law to wear at the time of marriage. Subsequently it was not returned and when the parents of the respondent demanded for return of the same, it came to light that it was pledged in the bank through his brother Eswar Rao. When mediators questioned him, he agreed to pay the amount if it is redeemed by the father of the respondent. The father of the respondent had to pay Rs. 10,000/- and redeem the jewel. When money was demanded, the petitioner and his brother raided the house of the respondent and caused damage and raised a huge galata . Immediately after this, the petitioner started exerting pressure on the respondent to leave the house and drove her along with her children to the parents' house. He expressed his final intention to desert her. Since then, the wife is obliged to live with her parents. Only when she gave the notice and filed a suit for recovery of possession of her Stree Dhana property, as a counter-blast, the husband gave a reply and then filed O.P.No. 190 of 1980 seeking restitution of conjugal rights. As the petitioner's offer to take her and to live with her is not bona fide and it was only intended to bring pressure on the respondent to force her to withdraw the suit, she refused to go and live with him. The suit O.S.No. 250 of 1980 was decreed in part but the relief for rendition of accounts was not granted. Now an appeal is pending in the High Court. The respondent claims that it is the petitioner who abandoned and deserted the respondent and the respondent is not guilty of desertion. Since four years the petitioner is living with one Sarojinamma and they are living as man and wife though ostensibly she is described as a cook. They are living in the house gifted by her parents to the petitioner. There is justifiable reason for the wife not joining her husband. The petitioner is guilty of desertion and cruelty and there is no desertion on the part of the respondent. She has a reasonable cause and justification for living apart.
3. The trial court, after a very elaborate trial, came to the conclusion that the respondent has not deserted the petitioner and it is amply proved that due to the beating and also keeping a lady as a cook by the petitioner, the respondent who was driven out, is living separately and she is justified in doing so and in view of this, the petitioner is not entitled to the relief of dissolution of marriage.
4. In this appeal, Sri A. Venkatramana, appearing for the appellant-husband contends that the desertion took place in July, 1979 and at that time excepting the disputes regarding property, there is no question of cruelty by the husband or the husband living with a concubine. It looks as if, on the facts of this case, that the wife deserted him some time in July, 1979. After having failed to take back the wife by making repeated efforts to bring her home, the petitioner appears to have developed some association with Sarojinamma. In the earlier O.P.No. 190 of 1980 filed for restitution of conjugal rights, the wife never pleaded that she is justified in living apart on the ground that the husband is living with a concubine. Throughout the husband was willing to bring her and live with her. Neither at any time in 1980 nor subsequently did the wife declare her desire to join the husband. On the other hand, she asserts in her evidence that she is not willing to live with the husband. Her categorical assertion, "Under any circumstances, I am not going to live with P.W.1 is a clear indication of her intention not to come back to the marital home. In these circumstances, the petitioner-husband is certainly entitled to a decree of divorce on the ground of continuous desertion for more than the statutory period of two years immediately preceding the filing of the petition. In this case, desertion is from 1979 and there is no chance of the parties coming together especially in view of the civil litigation launched upon by the wife and her parents.
5. On behalf of the wife, Sri G.V.L. Narasimha Rao contends that this is a case where the husband, taking advantage of the innocence of the wife, was trying to knock away the wife's property and was ill-treating her often and he was guilty of cruelty. It is now well established that the husband is living with a concubine and the clearly indicates that the wife is justified in living separately from her husband. She is entitled to reside separately. The wife has a genuine apprehension that the husband is only trying to offer to live with her with a view to knock away her property.
6. After hearing the appeal in part, this court made efforts to effect reconciliation and directed the parties to be present in court on 5-8-1991. The parties appeared and some efforts for reconciliation were made by the two advocates. On 6-8-1991, the parties were interviewed and it was represented that there is some chance of reconciliation and at the request of the parties, the matter was adjourned to the next day. Some proposals were given and the parties appeared to have agreed upon those proposals. Subsequently the parties drifted apart and ultimately no compromise could be effected. In fact, to implement the terms agreed between them, they wanted the case to be adjourned to 14-8-1991. It was adjourned to 14-8-1991. The parties were present and it was reported that there is no possibility of a reconciliation being effected because the parties seem to lay more stress on the properties and they are not bothering much about the family coming together and the children who are now grown up being married and settled in life. Ultimately the court was requested to hear the appeal and decide the matter on merits. Accordingly arguments were heard.
7. During the course of hearing of this appeal, the court expressed a desire to know what exactly is the stand taken by the parties at the time of O.P.No. 190 of 1980. Then C.M.P.No. 8183 of 1991 was filed to receive the documents and marked them as additional evidence Ex.X.1 and Ex.X.2. They are the certified copies of the petition and the counter in O.P.No. 190 of 1980. That petition is allowed and the documents are received in additional evidence so as to know what exactly is the stand taken by the parties at the earlier stage soon after the disputes arose between them. It is found that though the counter of the wife was filed in the later part of January, 1981, there is no allegation about the petitioner living with a concubine. There are only allegations of the husband trying to get at the properties of the wife and about the husband ill-treating the wife and beating her and a large portion of the counter relates to the property disputes between the parties, and the pending litigation. It is claimed that O.P.No. l90 of 1980 was filed as a counter-blast for the suit filed for recovery of possession of the Stree Dhana property and rendition of accounts for the profits realised for those lands.
8. Going through the entire evidence, the pleadings and the additional evidence Exs.X.1 and X.2, one gets the impression that here is a case where the parties are more anxious to cling to properties and safeguard their properties rather than make an effort to save the marital life of the spouses and look after the welfare of the grown up children. The impression that the property disputes are the main cause of friction between the spouses cannot be forgotten while deciding the present appeal. It is also clear that at the initial stages the parties were at loggerheads mostly because of the property disputes and there is not much evidence about cruelty meted by the husband to the wife and about the husband driving away the wife and the children to her parents' house. Considering the fact that the respondent was living in the house opposite to the house of the parents-in-law, there is no difficulty for the wife to join the husband if she had a genuine desire to save her family life. The claim for divorce in this O.P. has to be adjudicated in the above background.
9. The learned trial judge never bothered to analyse the evidence as to what was the reason for initial desertion and as to when the wife acquired the justifiable reason or cause for living separately. Though the evidence has been set out elaborately, the real discussion is only from paragraph 17 onwards. Without going through the chronological development of the events, in paragraph 26, the court jumped to the conclusion that the respondent has not deserted the petitioner voluntarily and that it is amply proved that it is due to the beating and also keeping a lady as a cook, the respondent left the petitioner. Therefore, the petitioner is not entitled for dissolution of marriage. The judge never bothered to analyse the evidence to find out who is guilty of desertion and what were the efforts made on the part of the parties to come together and as to who is at fault. The court did not also try to find out when exactly a justification for her living apart arose. The reasoning adopted by the trial court is defective.
10. If we examine the facts in the chronological order, we find that as a result of property disputes arising in 1978-79, the wife left the matrimonial home and then filed the suit for recovering possession of her properties and for rendition of accounts against the husband. Subsequently in 1980 when the husband filed the petition for restitution of conjugal rights, she never expressed her willingness to come and live with the husband. She only pleaded that the husband was ill-treating her and drove her out. She claimed that the husband is inviting her to come and live with him with a view to knock away her property. She never took the stand that she had a genuine reason and a justification to live apart from the husband. No effort was made to indicate that because of the cruelty meted out to her, she was not willing to go back to her husband's house. Due to a decision passed by this High Court holding that the relief of restitution of conjugal rights in ultra vires the Constitution that petition was dismissed. Subsequently the wife never made any effort to go back to her husband's house. There is evidence to show that all mediations on behalf of the wife were only for getting the property which is supposed to have been taken by the husband. She never made an effort to join the husband though the husband lives in the opposite house. When the husband filed a petition for divorce in 1984, she comes forward with the story that the petitioner abandoned the respondent and her children in the year 1979 expressing his final intention to desert her for ever. If her statement in the counter is to be taken into account, then the husband drove her away and she did not leave the house of the husband on her own. This statement is in conflict with the earlier statements in the counter which are to the effect that she was abandoned and so she went away to her parents' house. She nowhere stated in the counter that she is ready and willing to live with the husband. She pleads that she felt unsafe and undesirable to accept the offer of the husband made by way of filing the petition for restitution of conjugal rights. Then in the counter filed in the O.P. for restitution of conjugal rights, she never pleaded that she is forced to live away from the husband because the husband is living with a concubine Sarojinamma. In fact, she never made any allegation that he had bad character and that he was indulging in affairs with other women. In the counter filed in the present O.P., by an elaborate process of reasoning she tries to paint a picture that there is no desertion by her and that separation between the spouses was brought about by the unjustifiable acts of the petitioner and that she has a justifiable reason to live apart from the husband. In the course of evidence, P.W.1, the husband, stated that Sarojinamma is working as a cook. He denies the suggestion that he is living with her as man and wife. P.W.2 clearly stated that since five or six years, the respondent is not residing or living with her husband. He also states that he knew P.W.1 from his childhood and that P.W.1 has no vices. The wife as R.W.1 stated in her evidence that she is not agreeable for divorce and that since eight years they are living separately. She gives the ages of her daughter and son as 20 years and 19 years. She claims that she was sent out of the house because of the property dispute and the dispute relating to gold Palakasarulu. She claims that P.W.1 is residing with a concubine Sarojinamma and that she has seen him taking Sarojinamma on his motorcycle to cinemas. She does not mention about any efforts made on her behalf to go and live with the husband. She does not mention when exactly Sarojinamma came into the scene.
In the cross-examination, she states as follows:
"I am not willing to join P.W.1 as he lives with a concubine. I am living separately since eight years. My children are also living with me. Afterwards I did not raise any dispute before the elders. I am staying with my children at my parents' house and therefore, I did not raise any dispute. Under any circumstances, I am not going to live with P.W.1."
This statement of the witness is a categorical expression intention and her attitude. She admits that she left the husband's house eight years ago. She admits that she never made any effort to join her husband. She admits the she never raised any dispute though elders and she admits about her refusal to live with the husband under any circumstances. This is a clear indication that she has no desire to join her husband and her intention is to put a permanent end to cohabitation.
11. The evidence also indicates that originally when the wife deserted the husband, she had no justifiable cause except the property disputes between the parties. We are unable to understand how the civil dispute between the parties can affored a reason to the wife to abandon her husband. That is not a justifiable cause for her leaving the husband's home. Obviously because of the wife leaving him, some years later the husband appears to have developed an affair with Sarojinamma who is described as a cook. It is quite possible that he is having illicit relations with this cook. But the crucial question is whether any such subsequent conduct affords a justifiable cause for the wife to leave the husband. A decision in V. Jyothi Lakshmi v. Venkata Siva Koteswara Rao, 1983 (1) An.W.R. 439 is a direct authority to indicate that wife not joining the husband and subsequently the husband living with a concubine cannot constitute a cause to justify the conduct of the deserting wife. In that decision? there was no consummation of marriage and subsequently the wife deserted the husband, and subsequent to the desertion by the wife, it was alleged that the husband is living with a Harijan girl by name Lakshmi and the wife pleaded as a justification for her desertion, the subsequent conduct of his living with the Harijan girl by name Lakshmi alias Baby.
In such context the court observed at page 443 as follows:
"Thus it is clear that the conduct of the husband living with a concubine or marrying a second time will not operate ipso facto as a reasonable cause. It must be proved that the conduct of the husband has produced an impact on the mind of the wife so as to cause her to continue to live apart and continue the desertion. If a desertion has already taken place by the deserting spouse the subsequent conduct on the part of the deserted spouse cannot be relevant, and the subsequent conduct of the deserted spouse cannot constitute a reasonable cause to justify the conduct of deserting spouse."
The court also pointed out in the body of the judgment that the evidence of non-consummation of the marriage since inception and the reluctance of the wife to go to the husband's home for a statutory period would clearly establish two essential elements of the factum of desertion and the animus deserendi. The principle of this Bench decision would apply to the facts of our case. At the time of initial desertion excepting the property disputes, there was no other reason for the wife leaving the marital home. The subsequent conduct of the husband in living with a concubine cannot provide a justification for the wife continuing desertion.
12. Another decision which can usefully be referred to in this context is the one referred to in Sanat. Kumar Agarwal v. Nandini Agarwal, . In that decision, the Supreme Court was dealing with an educated couple well placed in society and who were married under the Gurawat system prevailing in Madhya Pradesh. The court found that Nandini left the matrimonial house on 9-12-1978 without any cause or reason and thereafter did not resume her matatrimonial obligations nor returned back to the matrimonial house. The court also found that the evidence revealed that the respondent was adamant not to live with the appellant and she was not willing to listen to the advice of parents or other family members of the appellant. When the husband invited her by elders, she did not respondent to the elders and on one occasion on the invitation of the husband she went to the station to meet the husband but did not actually meet him. In such a background, the court observed at page 597 as follows:
"In our view the above stand taken by the respondent and her explanation is totally untenable. It is beyond comprehension that though Nandini would have gone to meet the appellant at railway station, Durg, while he was leaving for Bhopal on transfer she would not have met her husband merely on an apprehension that she could have been insulted in the presence of many persons. That apart, admittedly the appellant had sent a letter as early as on 22-6-1979 inviting the respondent to come to Bhopal along with her brother Shivnarain to accompany her and in any case if according to her Shivnarain was not willing to go with her, nothing prevented her to go alone as she was admittedly a post-graduate and this conduct on her part clearly goes to show that she never wanted to fulfil her marital obligations and wanted an end of such relations."
In such circumstances, the court came to the conclusion that the wife is guilty of desertion. The court pointed out in paragraph 7 that the wife having gained M.Sc, B.Ed., degrees and after having obtained employment, she became economically independent, she got adjusted to a new mode of life and that she was unwilling to go to the husband by her continued conduct. The court granted decree for divorce on the ground of desertion. On the basis of the principles enunciated in this decision, we find that in the case on hand, the wife is guilty of desertion from 1979 June. On various occasions provided to her to express her intentions and desire to join her husband, she categorically asserted that she is not willing to join the husband. In the course of evidence in the court she stated that she is not willing to live with her husband under any circumstances. This is a clear proof of the wife deserting the husband for more than the statutory period. The subsequent conduct of the husband appears to be the result of her continued conduct. That cannot provide a justifiable cause for the wife to live separately. We hold that the petitioner succeeded in establishing desertion by the wife for over the statutory period. The petitioner is entitled to a decree of divorce.
13. It is unfortunate that in this case the property disputes had led to the ruination of the marital life of this family. The wife and her parents appear to be giving more importance to the preservation of property rather than to preserve the family life. The unfortunate victims appear to be the children of the marriage. The very strenuous efforts made by the court and the advocates with a view to bring a reconciliation ended in failure. The court is helpless.
14. In the result, the appeal is allowed. The O.P. stands allowed. There shall be a decree for dissolution of marriage. It is open to the parties to seek such reliefs as are open to them under law for maintenance and permanent alimony. Each party shall bear its own costs in this appeal.